Appropriation art is back in the news, as two of the biggest names in the field navigate the latest legal claims filed against them.

A few months ago, we wrote about a new lawsuit filed against Jeff Koons over his appropriation of a photograph from a 1980s liquor advertisement. The defendants in the case (Koons and auction house Phillips) filed answers to the complaint, but in mid-April, the parties informed the court that they had reached a settlement, and the case is now closed. But shortly after the Koons complaint was filed, another giant of appropriation art, Richard Prince, was haled into court for his latest dance on the line between fair use and copyright infringement. As this blog foreshadowed last year, litigation has arisen out of Prince’s exhibition, “New Portraits,” which was displayed first at the Gagosian Gallery in the fall of 2014 and later at the 2015 Frieze Art Fair. “New Portraits” featured appropriated images that had been posted by users of photography-based social network Instagram; Prince manipulated and added to the comments below each image, and then took screen shots of the images framed by the Instagram interface, enlarged them, and printed them on canvas. None of the original photographers consented to Prince’s use of their work, and rumors flew that the 30+ works in Prince’s show sold for five- and six-figure sums.

Perhaps unsurprisingly given the publicity “New Portraits” received, a photographer who created one of the images Prince used has now sued him for copyright infringement. The plaintiff is Donald Graham, a fine art and commercial photographer whose works have appeared in museums and galleries as well as in prominent magazines. Graham’s copyrighted photograph “Rastafarian Smoking a Joint” formed the basis of one of Prince’s “New Portraits” works. Graham alleges that “Rastafarian” had been uploaded onto an Instagram user’s account without Graham’s consent, then reposted by yet another user, and that from there, Prince added a comment and then took a screen shot of the image and a small number of the accompanying comments, minimally cropped and flanked by elements of the Instagram user interface from which it came; he then enlarged and printed the screen shot on canvas, and displayed the canvas as one of his “New Portraits.”

Besides Prince himself, Graham’s suit names additional defendants: art dealer Larry Gagosian and his famed Gagosian Gallery. Graham’s claims against the Gagosian defendants focus on their role in promoting, curating, funding, and profiting from the allegedly infringing exhibition. Indeed, Graham’s complaint asserts that, given Gagosian’s longtime awareness of Prince’s practices, Gagosian’s infringement should be deemed “willful” for purposes of calculating damages. This isn’t the first time a plaintiff in an appropriation art case has sought to impose liability not just on the artist but on a seller of the offending art, but there is little governing case law on the potential contours of liability for dealers and other sellers of appropriation art. Graham’s case may eventually give a court the opportunity to explore those issues (including the potential chilling effect on the art market if dealers, galleries, and auction houses become less willing to take on the legal risk of dealing in appropriation art).

In essence, Defendants’ motion to dismiss argues that Graham’s case is controlled by the Second Circuit’s landmark 2013 decision in Cariou v. Prince, one of the most important fair use cases in recent years, and one that involved none other than Richard Prince. Cariou revolved around Prince’s 2008 exhibit, “Canal Zone,” in which Prince extensively appropriated images from a book about Rastafarians by photographer Patrick Cariou. Cariou sued, but the Second Circuit ultimately sided primarily with Prince; the case culminated in a majority opinion that concluded that 25 out of 30 of Prince’s “Canal Zone” works constituted fair use of Cariou’s photographs under federal copyright law, and thus Prince could not be held liable for copyright infringement. See Cariou v. Prince, 714 F.3d 694 (2013). While the Second Circuit did remand five of Prince’s “Canal Zone” works to district court for further examination, the Cariou parties thereafter reached a confidential settlement of the remaining issues.

But the Second Circuit’s opinion focused heavily on whether Prince’s allegedly infringing works were sufficiently “transformative” so as to alter the original work to create “new information, new aesthetics, new insights and understandings.” The Second Circuit majority found that Prince’s artworks “have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.” Id. at 708. It also concluded that there was “no evidence that Prince’s work ever touched—much less usurped—either the primary or derivative market for Cariou’s work,” and there was “nothing in the record to suggest that Cariou would ever develop or license secondary uses of his work in the vein of Prince’s artworks.” Id. at 709. Defendants now seek to characterize Graham’s lawsuit as “an attempt to essentially re-litigate Cariou.”

Defendants urge that a reasonable observer would recognize that Prince has added “new expression, meaning, or message” to Graham’s photograph—specifically, they argue that Prince’s use of Graham’s photograph focuses on the image “as it has been incorporated within a social media post,” and “conveys a message sharply different from Graham’s.” They argue that this transformativeness is apparent when the two works are viewed side by side. They say the works are “visually distinct” because in Prince’s work, the photograph of the Rastafarian, instead of standing alone, is “surrounded by additional graphic and text elements” depicting the Instagram interface, including usernames, the number of “likes” the post received, a time stamp, and comments. They further urge that these aesthetic differences go hand-in-hand with Prince’s different “meaning,” which—in contrast to the gravitas of Graham’s portrait—focuses and comments on the social media platform context in which the Graham image appears.

They cite another Second Circuit case on appropriation art, Blanch v. Koons—yes, the same Jeff Koons—for the proposition that the fair use defense applies when the appropriation artist does not merely “repackage” the original image but instead uses it as “raw material” from which new aesthetics and insights spring, conveying different meaning to the viewer. The Defendants’ brief speaks only in broad strokes, though, about what Prince’s meaning really is, noting that it “may reasonably perceived as a commentary on the power of social media to broadly disseminate others’ work,” or it “can . . . be seen as” praising social media’s ability to “generate[] discussion of art,” or alternatively it could be interpreted “as a condemnation of the vanity of social media.” The Defendants urge that the “Court need not exercise its own artistic judgment in making this determination,” but rather should ask only how the works might reasonably be perceived (and helpfully cite various critics and commentators who took a generous view of “New Portraits”). And while they concede that Prince’s work is commercial (as opposed to, say, a work created for non-profit or educational purposes), they say that fact should carry little weight because Prince’s work is “highly transformative” and was displayed to the public, and the success of “New Portraits” is “not unfairly derived, but is instead a product of his own creative endeavors.”

Graham’s complaint takes care to emphasize the creativity and effort that went into creating Graham’s original photograph, including a lengthy trip to Jamaica at his own expense. But the Defendants argue that that factor carries little weight where the copyrighted work is being used for a transformative purpose. Defendants argue that, although Prince used Graham’s work almost in its entirety, “copying the entirety of a work is sometimes necessary to make a fair use,” and here, Prince had to screenshot the entirety of the Instagram post containing Graham’s image in order to comment on the social media context in which it appeared.

Defendants urge that Prince’s “New Portraits” did not usurp the market for Graham’s original photograph. Graham’s complaint notes that he sells limited edition prints of the photograph exclusively through a Paris gallery or through his studio, and has not licensed it or made it available other than on his own business websites. Graham’s complaint also states that Graham does not generally license his fine art photography nor make it available for any purpose other than for sale to collectors as a fine art print. Defendants jump on these allegations, emphasizing that from them, the court can conclude that Prince’s actions have not impeded the sale or licensing of Graham’s original work, and that Graham “would never develop a market for an artwork like” Prince’s “New Portraits” work. The Defendants also note that the two works are aimed at different markets; while Graham is selling a portrait that conveys “the spirit and gravitas of the Rastafarian people,” Prince is serving a different “market niche” and his works’ “other visual and text elements” ensure that “[n]o consumer seeking a fine art print of Donald Graham’s photograph would be tempted to accept Richard Prince’s [“New Portraits” version] as a substitute.”

When stories about “New Portraits” hit the news, we here at Grossman LLP noted that any claims against Prince arising out of “New Portraits” would necessarily be informed by the Cariou decision. But we also predicted that litigation over “New Portraits” would not necessarily lend itself to a straightforward application of Cariou in favor of Prince; despite the surface similarities (including the Rastafarian subjects) between Prince’s appropriation in “Canal Zone” and his appropriation in “New Portraits,” the two collections differed in critical ways, and a court’s fair use analysis of “New Portraits” might come out quite differently than Cariou. Indeed, Cariou itself has been the subject of extensive discussion, including criticism by a sister circuit, as well as a more recent Second Circuit opinion in Author’s Guild v. Google, Inc., which further explored the concept of transformativeness in ruling that the Google Books project constitutes fair use.

The plaintiff also clearly anticipated the Defendants’ heavy reliance on Cariou. Indeed, Graham’s complaint expressly addresses Cariou and foreshadows some of the arguments they may raise to distinguish this case from Cariou; for example, the complaint points out that “the amount and substantiality” of the photographs Prince incorporated into “Canal Zone” varied, and, perhaps even more importantly, that Prince added more to them (noting that the photos were “to differing degrees overlaid or interspersed with non-copyrighted elements”). Here, Graham’s work was copied almost in its entirety, except for minor cropping of the top and bottom of the image, and Graham takes care to emphasize that, of the few differences between his image and Prince’s, several of those differences were not even created by Prince; rather, they were created by other Instagram users or simply “appeared mechanically as a function of the Instagram service.” Graham is clearly seeking to position “New Portraits” as more akin to the five works that the Second Circuit remanded for further consideration in Cariou than to the 25 works that were held to be fair use as a matter of law; Graham even attached to his amended complaint images of those five remanded works.

In Graham’s response to the motion to dismiss, it’s likely that Graham’s lawyers will seek to emphasize language in Cariou concluding that Prince had not merely “presented the same material as Cariou in a different manner,” but instead he had “add[ed] something new” and “presented images with a fundamentally different aesthetic,” for example by over-painting, tinting, and collaging Cariou’s photos, thereby changing the “composition, presentation, scale, color palette, and media.” Id. at 705-08. “New Portraits” at least arguably involved far less alteration or addition Graham’s image; there is no over-painting, tinting, collaging, or other change to Graham’s photograph itself, only the addition of Prince’s comment, the capturing of the Instagram interface elements around the image, and the printing of the image onto a larger canvas. The court will have to evaluate whether that is really a “fundamentally different aesthetic,” or whether that is closer to the “minimal alterations” Prince made to the five works the Cariou majority remanded. Id. at 710-11.

Graham’s lawyers might also emphasize that under Cariou, the standard is objective, i.e., “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” Id. at 707. Here, would a reasonable observer see anything in “New Portraits” other than overt wholesale copying? And while Defendants’ motion offers several possible interpretations of “New Portraits” and the social commentary Prince may or may not have been making therein, Graham’s complaint cites some of Prince’s own statements that might undermine an attempt to claim “new meaning”; for example, in talking about “New Portraits,” he has called his own comments underneath the appropriated photos “gobbledygook” and asked, “What’s it mean? I don’t know. Does it have to mean anything at all?” On the other hand, Defendants have at least put forward a colorable response to the Second Circuit’s recent caution that a “would-be fair user of another’s work must have justification for the taking”; here (unlike in “Canal Zone,” which, by Prince’s own admission, did not seek to make any comment on the original Cariou works), according to the Defendants, the artist borrowed the original work in order to comment on the social media culture in which it appeared.

Graham’s response will also likely focus on the fourth fair-use factor—“effect of [Prince’s] use upon the potential market for or value of the copyrighted work.” In Cariou, this factor weighed in favor of Prince, because, as the Cariou court noted, there was no evidence “that Prince’s artworks had any impact on the marketing of the [Cariou] photographs,” and “Prince’s work appeals to an entirely different sort of collector than Cariou’s,” particularly given that Cariou had not actively marketed his work or sold photographs for significant sums. Id. at 708-09. But in Graham’s case, he will likely emphasize that he has sold photographs in galleries to fine-art collectors; indeed, Graham’s complaint alleges not only that he exhibits and sells his Rastafarian portrait via a fine art gallery to art collectors, but that he offers this portrait in only two sizes of limited prints, the larger size of which is very close to the size of Prince’s canvas reproduction.

The question of whether Prince’s work usurps Graham’s market is a complicated one, however. Defendants’ assertion that “[n]o consumer seeking a fine art print of Donald Graham’s photograph would be tempted to accept Richard Prince’s [“New Portraits” version] as a substitute” rings a bit hollow, in that it seems clear that Prince chose Graham’s work (and the other photographs featured in “New Portraits”) not simply because it was on Instagram, but because of its compelling aesthetic value (he tweeted about Graham’s lawsuit that the “[o]nly thing that counts is good art”). Indeed, it is not inconceivable that a collector might find Prince’s version of Graham’s work to be a more appealing investment than the original, given that such a collector would still get to enjoy many of the aesthetic qualities of Graham’s portrait itself, while also enjoying the cachet of its association with Richard Prince’s fame, controversy, and commentary. On the other hand, there is merit to the argument that Graham’s buyers are arguably in the market for a beautiful portrait, while Prince’s buyers are arguably in a fundamentally different market: perhaps a market for social commentary, or, even more simply, a market for, well, Richard Prince.

Part of what makes this case fascinating is that it raises the question of whether fair-use analyses should come out differently depending on who the infringer is. Take, for example, Cariou’s admonition that transformativeness is analyzed under an objective standard, i.e., “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” Id. at 707. It’s possible (although by no means certain) that a casual observer would simply see “New Portraits” as straightforward copying. But what if that observer knows that the copying was done by Richard Prince, the famed appropriation artist? Does that change things? Should it? Likewise, the fair use factor of whether an infringing work usurps the market for the original is also tricky to apply when it comes to Prince; with Prince’s celebrity following, heavyweight gallery backing, notoriety, and astronomical prices, he arguably appeals to quite a different market than anyone whose work he has appropriated; should that make a difference?
We will continue to follow this case as it unfolds.